Attorney-client privilege is a fundamental legal principle that ensures confidential communications between a lawyer and their client remain protected. This privilege is crucial as it encourages clients to be fully transparent with their legal counsel, fostering open and honest discussions necessary for effective legal representation. It applies when a client seeks legal advice or services from an attorney.
This protection extends broadly to all forms of communication exchanged within this professional relationship. It’s not limited to face-to-face conversations but encompasses written documents, emails, text messages, and any other medium used for conveying information. Essentially, any information shared within the context of seeking legal advice falls under this protective umbrella.
Crucially, the privilege belongs to the client. This means the client has the sole authority to decide whether to invoke or waive this protection. As established in legal precedent such as In re Lindsey, 158 F.3d 1263 (D.C. Cir. 1998), the power to assert or relinquish the privilege rests firmly with the client. This privilege can be asserted when legal demands for communication arise, such as during discovery requests, depositions, or in response to a subpoena.
However, it’s important to note that attorney-client privilege is not absolute. There are recognized exceptions where the disclosure of privileged information may be warranted. For example, the privilege is nullified if a client seeks legal counsel to facilitate a criminal act or fraud. Similarly, the presence of a third party during privileged communications can compromise confidentiality, unless that third party is essential to the attorney-client relationship, like an interpreter assisting communication. Furthermore, a client may inadvertently waive attorney-client privilege if they use their attorney’s advice as a defense in legal proceedings. Communications that are purely related to non-legal business matters also fall outside the scope of this privilege, as clarified in Neuder v Battelle Pac. Northwest Nat’l Lab., 194 F.R.D. 289, 293 (D.D.C. 2000). In certain limited situations, some courts may also override attorney-client privilege when an overriding public policy interest exists, such as safeguarding a child’s welfare, as seen in Matter of Jacqueline F, 47 N.Y.2d 215, 417 N.Y.S.2d 884 (N.Y. 1979).
Federal Rules of Evidence 502 provides further clarification, stipulating that inadvertent disclosure of privileged communication does not automatically constitute a waiver of privilege if certain conditions are met. Specifically, privilege is maintained if:
- The disclosure was genuinely unintentional;
- The privilege holder implemented reasonable measures to prevent such disclosure; and
- The holder took prompt and reasonable steps to rectify the error upon discovery.
Finally, it’s worth noting that the protection of attorney-client privilege generally does not extend to communications between an attorney and an expert witness. This distinction is important in the context of legal proceedings involving expert testimony.
Last updated in August 2023 by Jim Robinson, Esq., JurisPro Expert Witness Directory
